dissenting.
In spite of every safeguard the law has placed on privileged communications, although the law says a privilege is absolute and not subject to discovery, according to the majority, anybody can discover his legal adversary’s secret information simply by sending a discovery request. In fact, anybody can likely discover anybody’s secret information simply by filing a lawsuit on some grounds and then making a discovery demand under OCGA § 9-11-34. The person thus exposed dare not complain, or his lawyer or his psychiatrist, as the case may *897be, will bring all his secret information to court and use it against him, either to confuse the court and the jury as to the law of privilege, or to discredit his former client or patient.
Under the majority’s opinion, no person’s private information is privileged. It is within the ordinary scope of discovery and the burden to keep it secret is on the confider. The counselor is under no duty to keep it secret when he receives a discovery request, if the patient or client files no objection with the court within ten days; and this is true even if the client or patient specifically instructs the counselor not to release the information.
According to the majority, no person’s secret matter is privileged in the face of a discovery request by his adversary. The counselor is compelled hy law to reveal his client or patient’s most intimate, damaging secrets unless the confiding party, by filing an objection in court, acts to stop him. And although we presume the person who consults a lawyer or a psychiatrist or other counselor belabors under some physical, mental, emotional or legal disability or ignorance of the law, the majority’s opinion puts the burden on the patient or the client to ensure the counselor keeps his secrets.
This was never in the minds of the legislature when it enacted OCGA § 9-11-34. So greatly did the legislature fear misimpression or abuse of certain privileges that it added a special subsection to the statute to insure the confidentiality of mental health patients, at least. To no avail, it seems.
The majority states that before considering the issue of the psychiatrist-patient privilege and the issues of discovery and waiver, the nature of Jones’ claims against Dr. Abel must be kept in view, and then recites the claims at length, but I fail to see what a “view” of his claims has to do with whether OCGA § 9-11-34 includes privileged material within the scope of discovery of a third party. This “view” simply confuses the analysis. The majority then recites a mass of evidence in the case, revealing as well as possible all Jones’ secret information, which confuses the analysis even more.
The majority has the idea that Jones made some sort of waiver. But OCGA § 9-11-34 expressly, by reference to OCGA § 9-11-26, states privileged material is not within the scope of discovery in the first place, and it expressly provides in subsection (d) that the statute does not breach the confidentiality of a mental health patient’s records. So there can be no discovery of this material under the statute, and therefore no “waiver.”
Jones sued psychiatrist Dr. Abel and his clinic for damages for disclosure of Jones’ psychiatric records. He sought treatment in March 1987, from Dr. Abel in connection with having been abused at Anneewakee Institute when he was 15. Jones contends he felt shame and degradation about being sexually abused; he was deeply despon*898dent for fear of public disclosure and when Anneewakee Institute came under criminal investigation he sought psychiatric help. Then Jones’ former employee sued him in a money dispute. In September 1989, the adversary’s attorney sent Dr. Abel a request for production of documents to a nonparty under OCGA § 9-11-34 (c). Jones received the same request, took it to Dr. Abel’s office and instructed Dr. Abel’s employee not to provide any information.
Dr. Abel produced Jones’ entire therapy file to the attorney. Dr. Abel executed an affidavit in October 1989, swearing that before he disclosed Jones’ confidential records, Jones notified him not to do so; that the requested documents were privileged but by mistake Jones’ entire therapy file was provided; that the papers were extremely confidential, were not related to the litigation, and contained communications of highly embarrassing events in which Jones was victimized.
After Jones filed this suit, however, Dr. Abel repudiated his own sworn affidavit and said he had relied on OCGA § 9-11-34 (c) (2) in giving Jones’ private matter to Jones’ adversary’s attorney because Jones did not file an objection in ten days.
Defendants in opening argument to the jury revealed the embarrassing secrets and private feelings Jones had confided in Dr. Abel. They argued that before Jones consulted Dr. Abel he was severely psychiatrically damaged (and fully described the details); that his business was in trouble (and gave the details); and that when Jones was 15 he was involved in homosexual relationships at Anneewakee; that in March 1989, he was over $500,000 in debt; that this “successful” Georgia Tech businessman had a lot of problems; that he is very litigious; and on and on. In short, everything Jones had sought to keep private by confiding in his psychiatrist was revealed by the psychiatrist to the jury to justify his disclosure of those secrets to Jones’ adversary in a lawsuit. It had very little relevance to the damages caused Jones by this revelation, and none of it had any relevance to the question of privilege.
Over objection, Dr. Abel’s counsel was also allowed to argue the law to the jury. Defendants’ lawyers were allowed to instruct the jury that OCGA § 9-11-34 provides that if a request for production of documents is sent to a doctor, the patient has ten days to object or the doctor must release the documents. This is not the law.
The trial court charged the jury that the law provides that either Dr. Abel or Jones could file an objection, and that the jury could find Jones waived his privilege. This is not the law. Jones was entitled to a directed verdict and a j.n.o.v. The legal errors, including allowing defendants’ counsel to argue their imaginary version of OCGA § 9-11-34 to the jury, so infected the trial that this verdict should be reversed.
1. The psychiatrist-patient privilege given by OCGA § 24-9-21 (5) is “absolute, and [privileged matter] is not discoverable.” Atlantic *899Coast Line R. Co. v. Daugherty, 111 Ga. App. 144, 149 (141 SE2d 112). Discovery laws do not encroach on the privilege, for the “fsfcope of discovery” is expressly limited to matters “not privileged.” (Emphasis supplied.) OCGA § 9-11-26 (b) (1).
OCGA § 9-11-34 (a) (1) on its face limits the scope of discovery of a nonparty to “matters within the scope of [OCGA § 9-11-26 (b)],” i.e., matters not privileged.
Nothing in OCGA § 9-11-34 (c) (2) puts the burden on the patient to object to a discovery request. Subsection (c) (2) provides: “The nonparty or any party may file an objection with the court.” This means that if the patient does not object, the nonparty (doctor) may still object. If the doctor thinks he may violate his patient’s privilege, he may object, and he should object. Therefore, the fact that Jones did not object to the request did not compel Dr. Abel to release any of Jones’ records. Even Dr. Abel’s failure to object did not compel him to release the records, for they were privileged and not within the scope of discovery.
Since privileged material is not within the scope of discovery in the first place, nothing, even a total failure to object, authorized Dr. Abel to release Jones’ privileged records.
Therefore, on the face of OCGA § 9-11-34 (a) (1) and (c) (2), Dr. Abel could not reasonably or in good faith believe he was required to hand over his patient’s privileged matter at a lawyer’s discovery request. Ignorance of the law is no excuse for violating the law; it is presumed Dr. Abel knew the correct law. OCGA § 1-3-6; see King v. Green, 189 Ga. App. 105, 107 (375 SE2d 53); Bowman v. State, 186 Ga. App. 544 (2) (368 SE2d 143).
2. There is an independent reason this case should not have gone to trial. If the psychiatrist relied on OCGA § 9-11-34 (c) (2) as he says, he would have noticed this cynosure: subsection (d) provides: “Confidentiality. The provisions of this Code section shall not be deemed to repeal the confidentiality provided by Code Section [ ] 37-3-166 concerning mental illness.” OCGA § 37-3-166 applies to private psychiatrists and clinics. See Mrozinski v. Pogue, 205 Ga. App. 731 (423 SE2d 405); Annandale at Suwanee v. Weatherly, 194 Ga. App. 803 (392 SE2d 27).
OCGA § 37-3-166 provides “no part of [a mental health patient’s clinical records] shall be released except” in specified instances, none of which includes a discovery request by an attorney. Other than certain instances involving the patient’s treatment, his “clinical records” (see OCGA § 37-3-1 (2)) may be released only: to an entity designated in writing by the patient or legal guardian (OCGA § 37-3-166 (2)); to the patient’s attorney if the attorney requests and the patient consents (id. at (5)); or in response to a valid subpoena or court order, “except for matters privileged under the laws of this state.” (Empha*900sis supplied.) Id. at (8).
The latter provision may mean these privileged records were not discoverable even in the face of an order to compel discovery in a civil suit. As to the “rare” instances in which a court order may override the privilege, see Bobo v. State, 256 Ga. 357, 360 (349 SE2d 690) and Aetna Cas. &c. Co. v. Ridgeview Institute, 194 Ga. App. 805, 806 (392 SE2d 286).
3. Defendants are not immune from suit under OCGA § 24-9-44, because Dr. Abel’s release of Jones’ records was not made “pursuant to laws requiring disclosure or pursuant to limited consent to disclosure.”
4. As a matter of law Jones did not waive his privilege. No waiver can be inferred from failure to object to a discovery request because privileged material is expressly outside the scope of discovery in the first place. OCGA § 9-11-34 (c) (2) and (d). Further, psychiatrists are expressly excepted from OCGA § 24-9-40, which permits a physician to release information “on written authorization or other waiver by the patient” and which provides for waiver to the extent the patient places his treatment or injuries at issue in any civil or criminal proceeding. See Wilson v. Bonner, 166 Ga. App. 9, 17 (303 SE2d 134), citing OCGA § 24-9-40 as an affirmative adjuration.
5.1 view it as unfortunate that this psychiatric patient was forced to pursue this litigation to protect his privilege because of Dr. Abel’s insistence that he relied on law which does not exist. This trial was the more unwarranted because Dr. Abel’s defense contradicted his sworn affidavit that he released the records accidentally. This trial and the verdict were the result of manufactured confusion about a statute as to which there is no room for debate, but as to which the trial court allowed defendants to argue to the jury their own version of it. The trial court should have granted appellant’s motion in limine on waiver, and it should have recognized that privileged matter is expressly outside the scope of discovery. OCGA §§ 9-11-34 (a) (1) and (c); 9-11-26 (b). The jury should not have been allowed to entertain the psychiatrist’s assertions that OCGA § 9-11-34 compelled him to send his patient’s privileged files to an opposing attorney.
Moreover, it was prima facie unreasonable for Dr. Abel to assume his patient had no objection to the release of his most intimate communications to a party whose interests, as Dr. Abel knew, were inconsistent with his patient’s interests.
Dr. Abel’s violation of his duty to protect Jones’ privacy gives right to damages. Orr v. Sievert, 162 Ga. App. 677 (292 SE2d 548); see Roberts v. Chaple, 187 Ga. App. 123 (369 SE2d 482). The majority’s assertion that there was conflicting evidence as to whether Jones was harmed by these disclosures is beside the point: he was entitled to a verdict and j.n.o.v. as to liability.
*901Decided July 16, 1993 — Reconsideration denied July 30, 1993 — John Jones, pro se. Sullivan, Hall, Booth & Smith, John E. Hall, Jr., Roger S. Sumrall, for appellees.I would reverse the judgment of the trial court.
I am authorized to state that Presiding Judge McMurray and Judge Blackburn join in this dissent.